State ex rel. Speer v. Barker , 4 Kan. 379 ( 1868 )

By the Court,

Kingman, C. J.

The relator shows that in December, 1867, he was awarded the printing of the general and special laws of this state for the- year next ensuing ; that he gave bond for the performance of his contract, and is ready to perform it; that he has applied to the Hon. it. A. Barker, secretary of state, for, and demanded a copy of -the laws passed last winter, which demand has been refused. The secretary of state appears and resists the motion for a mandamus, and presents, as his objection, the law of last winter, March 3d, 1868, providing for the letting, by commissioners, of the contract for printing and furnishing 5,000 copies of the general statutes. By consent, all the facts are presented on this motion, and the secretary shows that under this law the printing of the general statutes has been awarded to another person than the relator, who now has the contract. Under the law, as it was before this enactment of last winter, the relator was clearly entitled to the printing of the laws, and it was as clearly the duty of the secretary to furnish him the copy. Did the law of the last session divest him of this right ? The relator claims that this law is in violation of that part of section ten, of article one, of the constitution of the United States, that declares that no state shall pass any laws impairing the obligations of contracts.

This is the only question involved in this motion, and it is one presenting no great difficulty. This clause of the constitution has been the subject of much discussion, and has elicited elaborate and exhaustive arguments and opinions from the federal and state courts, as different questions have demanded settlement. Probably no part of the federal constitution has called out so much learning, and been the subject of such critical examination, as this. Happily for the profession, it has received from the highest judicial tribunal in the land, an authoritative exposition in so many cases, presented in so many varying phases, that its application is not generally attended with any great difficulty.

Most of the questions that have, arisen under this clause, have been, as to the effect of laws changing the remedy, and as to how far such changes have impaired the obligations of the contract, .or as to what constituted a contract within the meaning of that clause. On both of these points there has been much difference of opinion, and much learned discussion ; but theories, however plausible or logical, have been made to yield to decisions, and reasoning that has convinced many thoughtful men, has been' made to give way to the force of absolute authority.

It is not within the scope of our ambition to press any special views of our own, but simply to follow the authoritative decisions of the Supreme Court. Satisfied that we find the law plain, we do not care to inquire whether it be logical, or harmonizes with theories.

The Dartmouth College case (4 Wheaton, 519) shows how far the court will go in holding legislative action a contract, which subsequent legislatures cannot disturb ; and on the other hand, the Charles River Bridge case (11 Peters, 420) shows what the court will not hold as a legislative contract.

While the Bank Tax cases from Ohio (16 Howard,, 369) perhaps go as far as any in limiting the power of the legislature to amend previous legislation where the sovereign power of taxation is concerned, whatever may be thought of the force of the reasoning of the Supreme Court .of Ohio as against that of the Supreme Court of the United States, in this case, still the latter court had the right to settle it, and did so ; and so ended the controversy.

The court holding in that case that a clause in a general banking law passed in 1845, declaring that a certain per centum of profits paid by the bank, should be in lieu of all taxes to which the bank would be subject, was a contract fixing the amount of taxation, and not a law prescribing a rule of taxation until changed by the legislature, and that a law passed in 1857, taxing banks and bank stock, the same as other property in the state, so far impaired the obligation of the contract as to render it unconstitutional. In the light of these decisions, and many others that we have examined, we have no hesitation in holding that the relator had a contract for printing the laws of the last session.

It. had all the elements of a contract — the agreement of two competent parties about a legal and competent subject matter, upon a mutual legal consideration, with a mutuality of obligation. (1 Ohio St., 657.)

The relator was under bond for the performance of his part of the contract, and the state was pledged for the performance of its part by the law, and the authorized acts of its officers.

The relator was not the state printer. There is no such ' officer in the state; he was doing certain specified work for a stipulated consideration.

The law under which the contract was made was one not only authorized but enjoined by the constitution, which directs that the public printing shall be let on contract to the lowest bidder, by such executive officers, and in such manner, as shall be prescribed by law.

It will be observed, that not only by its elements was the letting of the printing to the relator a contract in. its legal signification between tbe relator and tbe state, but by tbe very language of tbe constitution it was called, by its fit and appropriate name, a contract. The state bad no power to let tbe printing save by contract, for such is tbe method prescribed by tbe constitution. It being, then, a contract, by its constituent elements and by constitutional provision, for printing tbe laws for one year, bad tbe legislature tbe power to abrogate tbe contract? Clearly not. They bad exhausted their power over tbe matter, and were as much bound by the result as a private individual; as much bound to beep faith as tbe humblest person in tbe state, and bad, under tbe constitution of tbe United States, as little power to impair tbe obligation of tbe contract as though it bad been made by tbe most inconsiderable citizen. Tbe legislature was bound by a higher obligation, for it could not, with good grace, ask tbe citizen to keep faith and obey its enactments, at tbe same time that it was breaking faith and disregarding tbe requirements of tbe constitution.

We are aware that, as a general principle, our legislature is competent to repeal or modify any act which a former legislature was competent to pass, and that one legislature cannot abridge tbe power of a succeeding legislature. But this general principle has exceptions. When one legislature has fixed tbe salaries of tbe judiciary, it is not competent for a subsequent one to raise those salaries during tbe term of tbe incumbent. Tbe legislative power as to that matter is exhausted. So in this case ; having let tbe contract for a year, tbe power is exhausted. The object of tbe constitutional provision was to prevent tbe prostitution of tbe public patronage to the purposes of political favoritism. The framers of that instrument bad undoubtedly observed the uses to other states of the public printing, and attempted by this provision to prevent such’use here, and put it out of the power of the legislature to control the matter, save as the public good might demand, by general laws. How could this end he reached, if any legislature might interfere with one letting by providing for another that should supersede the first ? If they have that power, they could exhaust the patience of honest bidders, till none bnt their favorites would longer have the faith to compete for the work. We have confidence that such was not the purpose of the last legislature; hut we are not dealing with it as a question of intention, hut. as one of power, and we think, under the state constitution, the legislature had exhausted its power over its printing of the laws of the current year.

Again, when absolute rights of property have been acquired and vested by authority of law, no subsequent legislative action can divest this right. (Fletcher v. Peck, 6 Cranch, 87.) So where a contract is made under the authority of law, the right of property acquired arises not from the law itself, but from the contract to which it pertains as an incident, and the law-making power cannot divest the rights thus acquired, originating, not in the law itself, hut in acts clone under the law, and which attach as incidents, not to the law, hut to contracts made under it. To the argument of counsel, that a legislative body cannot divest a subsequent legislature of control over the matters, we oppose the decisions of the Supreme Court, as announced in the Bank Tax cases from Ohio, and the subsequent decisions in Ohio on the same questions. (5 O. S., 45.) There is no higher attribute of government than the right of taxation; yet we have seen that the legislature of Ohio, in 1845, bound subsequent legislatures on this subject by making a provision that certain profits should be in lieu-of all taxes. The case before us is much stronger. This is a contract that was doubtful in that case; this is not the foreclosure of the power of subsequent legislatures, but the execution of a power in the exact method enjoined by our constitution. We are therefore of the opinion that the act of the last legislature, so far as it provided for the printing of the' laws by any one besides the relator, was beyond the power of that body, and therefore void.

We are not insensible of the importance of having the revised laws printed .under the superintendence of the commissioners, with the advantage of the head notes and references provided for; nor do we perceive that the views we have of the case will prevent such a result. Only so much of the law, of last session is invalid as violates the contract of the relator.

The rest may well have force and effect. But let that be as it may, any advantage that might be gained by a violation of public faith would be too dearly bought.

The mandamus must be awarded.

All the justices concurring.